ASU wins fight for member on parental leave

Monday 10 July 2017

The FWC has confidentially resolved a dispute involving a Mission Australia program manager allegedly made redundant without consultation while she was on parental leave.

In granting an interim order during an "urgent" hearing last week – ahead of the settlement – that restrained Mission Australia from retrenching the manager, Commissioner Leigh Johns indicated that consultation has a purpose.

"[I]t cannot be conducted for mere show.

"If the consultation does not provide [the program manager] with an opportunity to influence the decision it is of no value and the requirement to consult and the consultation is hollow," he said in a written decision issued on Tuesday.

Mission Australia wrote to the program manager on June 1 to inform her that she was going to be made redundant four weeks later because it would no longer be delivering its Skills for Education and Employment course and Adult Migrant English Program, after the Federal Government made a funding offer that meant they were no longer viable for the organisation.

It said that Mission Australia failed in its search for redeployment opportunities for the program manager.

The program manager wrote to Mission Australia on June 13 and said it was "unclear" why it was retrenching her while she was on parental leave when it could wait until next year to see if any redeployment options had become available before her scheduled return to work in April.

But Mission Australia rejected the program manager's request.

An ASU Industrial Officer in our Membership Assistance Team then wrote to the organisation on behalf of the program manager, arguing that it is "difficult to comprehend the reluctance" of Mission Australia to allow the program manager to defer her redeployment until she returned from parental leave.

We argued the organisation would not incur any financial detriment, as it had already committed to paying the program manager her parental leave.

It said the program manager was at a disadvantage because she was on parental leave and it would be more difficult for her to secure full-time work while she was on leave.

We argued that it was reasonable to delay or postpone the redeployment period because it would give the program manager a better chance of staying with Mission Australia, which meant it would avoid having to pay the severance package to which she was otherwise entitled.

Dispute raises questions about employer's processes, says tribunal

Commissioner Johns said in his decision that Mission Australia needed to address some questions, including whether it had engaged in meaningful consultation, had done all it could to mitigate any adverse effects of the redundancy and had made reasonable redeployment efforts.

The ruling noted that the "urgency" of the program manager's application had been made out, as she faced dismissal only an hour after the Commission's hearing began.

The Commissioner highlighted the importance of making interim orders in the circumstances because the program manager's dismissal could only be undone after significant litigation and there would be "some complexity attached to unscrambling the egg."

The tribunal listed the matter for further conciliation after which a confidential settlement was achieved.

- Thanks to Workplace Express, where this article was originally sourced.